Category Archives: Criminal Law

DUI Per Se Hearing victory: implied consent and the administrative suspension process

Last week I defended a client before the Department of Motor Vehicles who was facing suspension for an alleged refusal to take a breathalyzer test. A few days later I received notice that we won the hearing and that her license would be restored. I am now 2-0 in such hearings. The hearing officer found that there was no refusal and that there was not a valid witness to the alleged refusal.

This was not a criminal proceeding. In Connecticut and most other states, drunk driving cases usually occur in two parallel phases: the criminal case and the administrative case. The criminal case is obvious–the arrest and court appearances for a violation of 14-227a, which is a crime punishable by imprisonment. At the same time, at least when someone is stopped for suspected drunk driving, the DMV’s case starts right at the arrest. Drivers licenses are granted by the Department of Motor Vehicles, which is an administrative agency. Sec. 14-227b is the Implied Consent statute, which gives DMV the authority to suspend a driver’s license (or driving privileges for someone not licensed in CT or at all) if he or she fails or refuses a chemical alcohol test following a drunk driving arrest. In short, through the act of operating a motor vehicle in the state, a person gives the state his or her consent to be tested for alcohol by a blood, breath or urine test. This obviates Fourth Amendment issues of the test itself. The stop is another story.

Peter’s idea was to take his driver’s license picture drunk so that when he got pulled over for driving drunk, he would just appear to be in his “normal” state. Peter however did not account for the erratic driving and other factors that would give police the reasonable suspicion they need to stop him.

To stop a car, police need reasonable suspicion that an offense has taken place, is taking place or is about to take place. Following the stop, the police need probable cause to arrest and take into custody a person suspected of driving drunk. Once the person is in custody, the testing rules apply.

A person who takes and passes the test is good to go. Someone who fails or refuses the test will have his or her license held for 24 hours and then face further suspension. For a first offense, a person 21 or over faces a six-month suspension for refusing the test, 90 days for a 0.08 up to 0.08 BAC and 120 for 0.16 and up. The penalties are harsher for subsequent offenses and for people under 21.

Refusal does not have to be express. A person can also refuse by his or her conduct–such as by not seriously attempting the test. Often when the machine does not register a reading, the officer will mark refusal.

Due process requires DMV to provide a hearing (this is the Per Se hearing) to determine whether a suspension should be upheld. DMV must prove four things to uphold a suspension: (1) That there was probable cause to arrest the driver; (2) That the person was placed under arrest; (3) That the person failed or refused the test; and (4) That the driver was operating the vehicle. If any is not proven, the suspension fails and the license is restored. Note that the hearing must be requested and scheduled.

In the last case I had, my client attempted to take the test but was unable to blow hard enough to register a valid sample. We demonstrated at the hearing that she suffers from asthma and, despite her sincere attempts, just didn’t have the air in her to blow. Additionally, there was no other evidence of noncompliance. DMV could not prove that she the test. Her license was restored.

For many people the license suspension is the worst part of a DUI charge because it takes effect early in the process and exists even if they take the diversionary program to avoid a criminal conviction.

Note that alcohol is not the only intoxicating suspense that triggers the DUI/OWI statute. Any intoxicating substance qualifies.

Driving while stoned is also a violation of 14-227a.

Intoxication and motor vehicle operation do not go together. The lyrics to this classic punk song by Murphy’s Law should not be followed but the eponymous axiom usually is: whatever can go wrong, will go wrong.

Drinking and riding: can automobile passengers consume alcohol in Connecticut? The answer may surprise you.

As everyone should know, it is illegal to drive drunk, even in Wisconsin. In Connecticut and every state other than Mississippi, it is also illegal to operate a motor vehicle and imbibe at the same time. Section 53a-213 of the General Statutes makes that a C misdemeanor here in the Nutmeg State. Mississippi is the one state remaining in the country in which a person can drink and drive at the same time provided that he or she is not drunk.

“What state are we in and what are its laws?”

But what about passengers? Can they legally drink in a car? In most states the answer is that they cannot. In Connecticut and a handful of other states, there is no state law prohibiting passenger alcohol consumption. That does not mean that everyone but the driver can be boozing it up on a car ride. It depends on where the car is being driven. Many cities and towns have ordinances against open containers on public roads and in public places. New Haven has such an ordinance: Sec. 18-39 of the Code of General Ordinances. Violations of ordinances are not criminal acts but may carry fines. Additionally, minor in possession laws are always applicable.

This might not be illegal. It can however, still cause some trouble.

Whether it is allowed under the law or not, alcohol and cars do not mix. Drunk passengers may distract a driver and a car that looks like a party on wheels may attract police attention.

Christopher DeMatteo is an attorney who knows about alcoholic beverages, the law and alcohol law. He operates his own practice, DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299. To learn more about this and other topics visit DeMatteo Law LLC at its website: New Haven lawyer.

Stop the Presses’…lack of protection. There should be a federal media shield law.

To any Department of Justice investigators who might have dumped my phone in an effort to figure out this week’s post topic, save yourself the trouble, it’s about the absence of a federal media shield law. One of the big stories in a week that couldn’t end soon enough for the Obama administration is the revelation that the DOJ obtained records of various Associated Press phone lines by subpoenas to the wire service’s phone provider.

As shameful and shocking that the DOJ did this, what is worse is that it wasn’t illegal. Although warrants are required for police to tap phones (to listen to conversations), no warrant is required to obtain the records of incoming and outgoing numbers for a phone line nor to put a trapping device (pen register) to catch those numbers. When you hear TV police detectives talk about “dumping” or “trapping” a suspect’s phone, this is usually what they mean, not putting a wiretap on it. The Supreme Court held in 1979′s Smith v. Maryland, 442 U.S. 735, that such practices are not considered searches and therefore not subject to the warrant requirement. The basic reasoning was that such information does not meet the Katz reasonable expectation of privacy standard because it is information that phone companies already have and is not related to the contents of calls (which is protected).

The Daily Planet’s legal counsel responds to a DOJ subpoena. Government intrusion is the kryptonite of a free press.

The First Amendment guarantees, among many other forms of expression, a free press. This is highly important to a democracy because the people must be informed (although viewers of Fox News and a few other entertainment providers waive that right quite regularly) and journalists must have the ability to do that. The free press protections apply mostly to publication. As the Supreme Court held in New York Times Co. v. United States, 403 U.S. 713 (1971), the infamous “Pentagon Papers” case, the government cannot censor or restrain news publication. A phenomenal quote from that decision:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Now more than ever–with the technology and mass media we have–the pen really is mightier than the sword. In recent months we have been inundated (through the media) of “Second Amendment solutions” and fighting “tyRanny!!$@%$!” with armed rebellion. A safer and more immediate way to change the government is through voting. A free press enables the populace to fully exercise that power.

While the media are armed with pens, they lack shields. Although the government cannot censor publication, it could require reporters to reveal sources. Many states, including Connecticut, have media shield laws. These laws do not provide absolute protection of news sources, but establish protocol that prosecuting and law enforcement authorities must follow–including providing notice and opportunity for argument to the news medium and requiring the seeker of the information to prove by–clear and convincing evidence in Connecticut courts–why such information must be disclosed. Our law is codified in Conn. Gen. Stat. 52-146t. The federal government and courts have no requirement. An egregious oversight for a government that was bound by the First Amendment since its ratification.

There was a proposal for a federal media shield law in 2007. It was passed by the Democratic House (only 21 representatives, including clown Darrell Issa, R-CA, voted against it) before it was filibustered by a bunch of bozos (Republicans) in the Senate. Illinois Sen. Barack Obama, who apparently cared about this subject in his younger and less vulnerable years, supported the bill. To some credit, the White House just renewed its support for a failed 2009 media shield bill. Congressmen and Senators, put your money where your mouths are and pass this bill.

Journalists’ sources need legal protection. If they suspect that their numbers and a conversations are being monitored, they won’t speak to journalists. If that happens, our news and our democracy will suffer.

DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299 is a law firm owned and operated by Attorney Christopher DeMatteo. To learn more about this and other topics visit DeMatteo Law LLC at his website New Haven Attorney

Dzokhar Tsarnaev Informed of His Rights…Our Rights.

Following the capture of Boston Marathon bombing suspect Dzokhar Tsarnaev, many media members and armchair attorneys beat ourselves up over whether Mr. Tsarnaev would and should be given his Miranda rights by the investigators and prosecutors before they attempted to question him. The “public safety” exception that was articulated in New York v. Quarles, 467 U.S. 649 (1984), was cited as authority to question him before he was given his Miranda rights and still use those statements against him at trial.

Some quick background on Miranda. As I wrote in my Sound of Silence post last week, the Miranda rule, rooted in the right against self-incrimination, requires law enforcement authorities to advise a suspect in custody that he or she has the rights to remain silent and to consult with an attorney before questioning. The Miranda warning does not have to be given at the time of arrest (as it is for nearly every TV arrest) but only before the suspect is questioned. The remedy for a violation is that the statements obtained absent the confession cannot be used at trial against the defendant. Very often the government can prove a defendant’s guilt without a confession. Ernesto Miranda for one, had his original conviction overturned in the case that led to the rule which now bears his name, but was convicted again in his second trial without his confession in evidence. (After he was released from prison, Miranda made some money autographing Miranda rights cards.) Whether he was advised of his rights or not, these are rights that Mr. Tsarnaev always had. These are rights that we all have in our criminal justice system.

Once counsel attaches, a defendant cannot be questioned without the consent of his or her lawyer.

Mr. Tsarnaev was advised of his rights by a federal judge in his initial appearance, which was held yesterday in the hospital where he is being treated for his injuries. The right to counsel attaches at this hearing and the court appointed a federal (public) defender to represent Mr. Tsarnaev in that and subsequent proceedings. Since he is represented by counsel, he cannot be questioned by investigators or prosecutors without his attorney’s knowledge and presence. This right is based in the Sixth Amendment (incorporated on the states by the 14th) right to counsel. All persons charged with a crime have the right to effective counsel. Now that he is charged with various crimes, Mr. Tsarnaev has will be afforded such representation. The court advised him of this right as well as his Fifth amendment right against self-incrimination. Read the transcript of that hearing below:

Transcript of Dzhokhar Tsarnaev's bedside hearing

If you followed me on Twitter the past few days (if you don’t follow me, do so here), you’d see that I was in the camp to inform Mr. Tsarnaev of his rights before any questioning. I am skeptical of any expansion of existing exceptions to rights and protections because these are all of our rights.

We’re done here.

Stuck in Second

Proposed gun laws were shot down in the Senate lastnight. The most significant and the one thought to have the best chance of passing was the one that would have mandated background checks for the sales of firearms by private sellers (i.e. individuals, not stores). Laws regulating firearms are immediately controversial in the United States where we have the Second Amendment to our Constitution. The question is always whether a measure violates rights secured by that amendment. Based on our current law, a background check requirement for all firearm sales would likely be Constitutional because it would not erode the established rights to possess firearms. This post only deals with the legality of federal background checks; not the other proposed measures in Congress or those passed by individual states.

Stores are already required under their federal licenses to perform instant criminal background checks on customers attempting to purchase handguns. 18 U.S.C. 922(t). Some people are by law prohibited from possessing firearms–most notably felons–and the background checks are designed to stop sales to them. That requirement is only for licensed firearms dealers. Individuals are allowed to buy and sell firearms in much the same manner as other used items provided they are not doing so as a business. Since they are not licensed dealers, they do not have the license-required background check obligation. The private sale background check proposal, which appeared in a few different drafts, was intended to prevent people who are prohibited from possessing firearms and unable to buy them in a store from being able to get them at gun shows and/or from private sellers.

The licensed gun dealer background check requirement has been upheld as Constitutional. A similar requirement on private sales would most likely also be upheld as Constitutional because it does not impact individuals’ rights to own and carry firearms. The requirement would only prevent possession that is already Constitutionally barred.

Felons are already prohibited form possessing firearms by federal and state laws. See 18 U.S.C. 922(g); Conn. Gen. Stat. Sec. 53a-217. These laws, known as FIP (felon in possession) laws, have been held to not violate the Second Amendment. The Supreme Court, in a majority opinion written by Scalia, asserted in District of Columbia v. Heller, 128 S.Ct. 2783, 2817 (2008)

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.

That was not a holding but does imply that such laws are Constitutional. Federal circuits and state supreme courts have explicitly held FIP laws to be constitutional. The usual reasoning is that such possession is not protected by the Second Amendment or state constitutional provisions. See e.g. United States v. Pruess, 703 F.3d 242 (4th Cir. 2012).

Background check requirements do not create new prohibitions on firearm possession. They serve to enforce existing, accepted prohibitions. While they may cause slight inconvenience in the buying or selling of firearms, inconvenience is not the same as the infringement of a right, especially since most sales are already subject to background check requirements.

“And this is for shooting down police helicopters. The Senate just filibustered a bill to ban it.”

I support background checks for all sales because I think it would be an effective and minimally restrictive measure. We know that the high majority of gun owners do not use their weapons for illegal activity. Laws should thus focus on preventing guns from falling into the wrong hands. Unlike drugs, guns are not made in secret labs but in factories. To get from a factory to a criminal activity, a gun must pass through some hands, some of whom are legal sellers or owners. Background checks for all sales would make it more difficult for criminals to obtain guns without banning things.

How would the Supreme Court really rule on a universal background check law? We will probably never know. How would such a law impact firearm-related crime? We will likely never know that either.

The Sound of Silence: Can a criminal defendant’s refusal to answer a question be used against him?

If a defendant talks to the police when he is not in custody and then goes silent, does he make a sound? To wit, can the prosecutor argue that the defendant’s silence or refusal to answer certain questions demonstrates his guilt? The U.S. Supreme Court will take up this question when it hears arguments for the case of Salinas v. Texas this week.

In Salinas, the defendant agreed to voluntarily talk to the police regarding a murder for which he was a suspect. He was not arrested at this time. After answering questions for close to an hour, he was asked about shotgun shells that were used in the murder. The defendant provided no further answers and was later arrested and charged with the murder. The State did not comment on the defendant’s refusal to continue answering questions in his first trial, which resulted in a mistrial by a hung jury. In the second trial, in which the defendant did not testify, the prosecutor asserted in closing argument that the defendant’s abrupt silence shows his guilt because an innocent person would have offered an explanation to the question about the shotgun shells. The defendant was convicted. The conviction was affirmed on direct appeal.

TV has conditioned most Americans into understanding the Miranda warning: that an arrested person has the right to remain silent and that anything he or she says in waiver of the right can be used as evidence against him or her. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda is not an issue in Salinas because Mr. Salinas was not in custody–Miranda only applies to people who are arrested or otherwise detained by the police–but instead voluntarily talked to the police. He could have left at anytime before being arrested. He also could have declined the police’s invitation to come down to the station. Miranda prevents statements obtained after a defendant invokes his right to remain silent or made absent a warning from being used as state evidence but do not invalidate the arrest or charges.

Despite having a Constitutional right to remain silent, a large majority of defendants waive that right. Few help themselves by doing so.

Defendants have the right to testify for themselves and also the right to not testify at all. The Fifth Amendment prohibits criminal defendants from being witnesses against themselves. In many if not most trials, the defendant does not testify. Jurors are instructed not to infer anything about a defendant’s decision not to testify (that he or she is hiding something…which many jurors do anyway). Prosecutors, by the rule articulated in Griffin v. California, 380 U.S. 609 (1965), are not allowed to comment on a defendant’s decision not to testify. The Griffin rule and the Fifth Amendment are rooted in our adversarial system of justice and to protect from inquisitorial-like proceedings.

Should a defendant’s silence be able to be used against him or her even though the verbal statements are admissible? It is my opinion (not surprisingly siding with the defendant in this one) that it should not be. A defendant’s refusal to answer questions should not be argued or construed to be evidence of guilt. Allowing such a practice would undermine the Fifth Amendment and unfairly shift the burden of proof onto the defendant, in violation of our presumption of innocence.

For starters, why should silence be considered incriminating? There are many reasons why a person may decline to give an answer to a question while being interrogated. One is that the person may be confused. Another is that the person may realize, upon hearing the question, that he or she may be under suspicion and should talk to a lawyer (better late than never). When a person gives an answer, there are words that were spoken for a fact-finder to read or hear. Whether those words are incriminating is up for the finder of fact to determine. There are no words in silence. Mr. Salinas’ silence only became incriminating because the prosecutor said it was. Using silence as evidence against a defendant effectively punishes him or her for invoking a Constitutional right. It is one thing when someone willingly says something incriminating. It is quite another when a person says nothing. The prosecuting authority should not be allowed to put words in a defendant’s mouth. Putting incriminating words into a defendant’s mouth makes that defendant a witness against himself.

As the petitioner (defendant) in Salinas argued in his brief, considering silence incriminating shifts the burden of proof. In the United States all criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt by the government. A defendant does not have to put on a defense to be acquitted. Allowing silence to be considered incriminating reduces the state’s burden on top of giving the state more evidence.

Justices, reverse this conviction.

The words of the prophets are written in the Common Law blog.

Ryan

Does Connecticut Have a “Stand Your Ground” Law? The Defenses of Persons, Premises and Property in the Nutmeg State.

Defense of Person, Defense of Premises and Defense of Property are all justification defenses: a person is allowed to use force against another person and not be held criminally liable in order to defend himself, a place or property from an act against his person, place or property.

Defense of Person (Self-Defense and Defense of Others) Conn. Gen. Stat. Sec. 53a-19
A person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose. See the section on Deadly Force below.

A person is not justified in using physical force when
1. with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or
2. he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or
3. the physical force involved was the product of a combat by agreement not specifically authorized by law.

Deadly Force
Deadly physical force may only be used when actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

A person is not justified in using deadly force to defend himself or herself when he or she can avoid the use of such force by:
1. Retreating. A person does not have a duty to retreat in the home or office. This is the castle doctrine and the area in which “stand your ground” laws change the common law.
2. By surrendering possession of property to a person asserting a claim of right thereto
3. By complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.

Nolan Ryan stands his mound.


“Stand Your Ground” laws refer to laws enacted in other states that remove the duty to retreat in self-defense situations. Florida’s stand your ground law, which is the most famous in the country, provides the following:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. Flor. Stat. Sec. 776.013(3).

This in essence expands the “Castle Doctrine” to situations outside of premises. The common law standard, which has been codified and is used in Connecticut and most states, is known as the “Castle doctrine” holds that the duty to retreat does not apply in situations that occur inside the defender’s home or other premises. This rule is rooted in the time-honored English law precept that “an Englishman’s home is his castle.” Now back to Connecticut law.

Defense of Premises (Includes Home and Place of Business) Sec. 53a-20
A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises:
The use of deadly force is only authorized in the following situations:
1. To defend a person, in which case the defense of persons law from above applies with the added “Castle Doctrine.”
2. When he reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or
3. To the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling, or place of work, and for the sole purpose of such prevention or termination.

Defense of (Personal) Property Sec. 53a-21.
Despite the statute’s use of the term property, this refers to personal property—objects or money—not land or buildings, which are covered as premises.

A person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent an attempt by such other person to commit larceny or criminal mischief involving property, or when and to the extent he reasonably believes such to be necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force.

It is important to note that although these are justification defenses, they are defenses. They do not make someone immune from prosecution but are used to defend against charges at trial. When a person raises such a defense, the State must disprove the defense beyond a reasonable doubt. These defenses are fact-sensitive: what may be reasonable in one case may not be reasonable in another. Whether a defendant’s belief is reasonable is ultimately left for a jury.

So is a person allowed to shoot burglars and or trespassers? Yes, but it must be reasonably believed necessary to protect a person, prevent arson or another violent crime, or to prevent/terminate the unlawful entry onto those premises. There is right to “shoot on sight.” Not even in Texas.

Just as Florida has the most famous “stand your ground law” in the country, Texas has a reputation for strong defense of property customs. One
In Texas, “a person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.” Tex. Penal Code sec. 9.41. That doesn’t look too different from Connecticut’s law. On using deadly force to defend property, Texas statute requires that a person must be justified in using regular force and must also reasonably believe that such deadly force is immediately necessary

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. Sec. 9.42.

There appears to be more about the use of deadly force in protecting property. Additionally, Texas has a statutory justification for using force to defend another person’s property. Still, this does not allow a person to shoot someone who simply sets foot on his or her property.

Busted for Brackets? The legality of NCAA tournament pools and other sports betting in Connecticut.

It is the most wonderful time of year. College basketball is in its postseason. A week from today the 68-team NCAA men’s tournament bracket will be revealed and within minutes many of us will be filling out our own brackets to play in pools. Whether they be among friends, co-workers or part of Internet contests, most of these brackets will be entered into pools with the goal to win a prize. Most commonly this works by paying a sum of money per entry (filled bracket) to enter a pool. Whoever scores the most points with his or her bracket wins the prize, which is most often the money in the pool or a prize purchased by the money in the pool.

Since tournament pools are ubiquitous, some of you may be wondering if they can violate gambling laws. Some of you might actually care. The answer is a classic legal axiom: it depends. More than likely your pool will be well within the bounds of the law. There are however some things that may draw some whistles.

To start, let’s look at Connecticut’s relevant gambling statutes. Sec. 53-278a of the General Statutes includes the following definitions:

(1) “Gain” means the direct realization of winnings; “profit” means any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management or unequal advantage in a series of transactions;

(2) “Gambling” means risking any money, credit, deposit or other thing of value for gain contingent in whole or in part upon lot, chance or the operation of a gambling device, including the playing of a casino gambling game such as blackjack, poker, craps, roulette or a slot machine, but does not include: Legal contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries; legal business transactions which are valid under the law of contracts; activity legal under the provisions of sections 7-169 to 7-186, inclusive; any lottery or contest conducted by or under the authority of any state of the United States, Commonwealth of Puerto Rico or any possession or territory of the United States; and other acts or transactions expressly authorized by law on or after October 1, 1973;

(3) “Professional gambling” means accepting or offering to accept, for profit, money, credits, deposits or other things of value risked in gambling, or any claim thereon or interest therein. Without limiting the generality of this definition, the following shall be included: Pool-selling and bookmaking; maintaining slot machines, one-ball machines or variants thereof, pinball machines, which award anything other than an immediate and unrecorded right of replay, roulette wheels, dice tables, or money or merchandise pushcards, punchboards, jars or spindles, in any place accessible to the public; and except as provided in sections 7-169 to 7-186, inclusive, conducting lotteries, gift enterprises, disposal or sale of property by lottery or hazard or policy or numbers games, or selling chances therein; and the following shall be presumed to be included: Conducting any banking game played with cards, dice or counters, or accepting any fixed share of the stakes therein;

(5) “Gambling record” means any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling;

(6) “Gambling information” means a communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling. Information as to wagers, betting odds or changes in betting odds shall be presumed to be intended for use in professional gambling

Pool-selling and book-making immediately catch your eye. Book-making, also known as booking, is the accepting and paying of bets, usually related to sports. Pool-selling isn’t as obvious but looks important. Defined in State v. Fico, 147 Conn. 426 (1960), pool-selling “consists of the receiving from several persons of wagers on the same event, the total sum of which is to be given the winners, subject ordinarily to a deduction of a commission by the seller of the pool.”

It looks here that a tournament bracket pool may constitute pool-selling. That questions then are: is this gambling and if so, is it legal?

The next statute to look at is Sec. 53-278b, which provides

(a) Any person who engages in gambling, or solicits or induces another to engage in gambling, or is present when another person or persons are engaged in gambling, shall be guilty of a class B misdemeanor; provided natural persons shall be exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling.

(b) Any person who engages in professional gambling shall be guilty of a class A misdemeanor.

The key is whether the pool is professional in nature. Professional gambling requires a profit motive. A bracket pool among friends or office colleagues in which the pot goes to the winner and the organizer doesn’t take a rake lacks the profit motive. A pool that has a cash prize but not an entry fee would also lack the profit motive. A pool in which the organizer takes a cut of the buy-in would most likely cross the line into professional gambling.

In addition to the absence of a profit motive, most tournament pools fall into the “social gambling exception” delineated in Sec. 53-278b(a). Although there is no definition of “social gambling” in the statute or in case law, many other states have this exception and have defined it. In Colorado for example, “‘bona fide social relationship’ means that the parties must have an established social relationship based upon some other common interest other than the gambling activity.”

If I had the CIA and FBI at my disposal, my bracket would be pretty good too.

Some people like to go beyond the brackets and wager on individual games, often seeing people who regularly engage in Sec. 53-278a(3). Such sports* betting is illegal in Connecticut and almost every other state. A great deal of sports wagering is now conducted over the Internet with offshore sports books. Interestingly, it is not a federal crime to place bets. The Wire Act and other applicable federal laws prohibit booking. Still, betting on sports via the Internet is still prohibited by Connecticut law. It can still violate Sec. 53-278b and has not been specifically authorized by law.

Sports wagering does not refer to pari-mutel betting, which is legal.

Happy brackets, friends.

Everything You Always Wanted to Know About Sex Assault 2 (Statutory Rape) But Were Too Afraid To Ask

Few crimes are endearing in pop culture as the form of sexual assault commonly known as statutory rape. Although murder has been the subject of far more movies and TV shows, a sexual relationship or encounter in which one of the persons is below the legal age of consent provides a twist of intrigue to the classic forbidden romance device.

I have received numerous questions and heard much misinformation about these types of crimes over the years. In my experience, it ranks with drunk driving laws as the most discussed yet least understood of crimes.

Known by various terms depending on the jurisdiction (and seldom called statutory rape), statutory rape laws usually refer to laws which make sexual intercourse between two persons a crime when one of the participants is below the legal age of consent or is a member of a class which the law presumes cannot consent to sexual activity. In popular media and literature, it is almost always an older man having sex with a younger woman–think Lolita and all of its derivatives. In real life however, it is much more.

The key to any statutory rape law is the age of consent. Age of consent is most simply defined as “the age at which a person is legally considered competent to give consent, as to sexual intercourse.” These ages depend on jurisdiction. Thus, Internet countdowns for young celebrities’ eighteenth birthdays (some of us will remember the Olson twins’ countdowns; other readers may recall Miley Cyrus, Justin Bieber and Taylor Laughtner–see, it isn’t just men who have these ideas) may not be accurate. It is the ages of consent which are the subject of the most misunderstanding.

In Connecticut, which for years has used the term sexual assault to refer to the crimes that were traditionally known as rape, statutory rape is codified in Conn. Gen. Stat. Sec. 53a-71 as Sexual Assault in the Second Degree, which provides in relevant part

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless; or (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare…

So, according to our law, the age of consent in Connecticut is sixteen in that, barring one of the prohibited relationships established later in the statute (teacher-student, therapist-patient, coach-player, etc.), a sixteen year-old can legally have sex with a person of any age greater than sixteen. That is not to say that the age of fifteen triggers the crime as the more-than-three-years-older provision allows for a fifteen-eighteen relationship. Similarly, fourteen-seventeen and thirteen-sixteen interactions are permissible. Sex with a person under the age of thirteen is unlawful no matter the actor’s age.

If the protagonist’s fantasy is realized, there may be a violation of Sec. 53a-71 because of the participants’ ages as well as their student-teacher relationship.

It is important to note that mistake as to the younger person’s age is not a defense to this crime. See State v. Blake, 63 Conn. App. 536 (2001). Additionally, it is not a defense that the sexual intercourse was consensual.

In addition to Sec. 53a-71 which establishes prohibitions on sexual intercourse, Sec. 53a-73a, Sexual Assault in the 4th Degree, applies most of the same age and other restrictions to sexual contact short of intercourse. Moreover, the crime of Risk of Injury to a Minor, Sec. 53-21, may be charged to include sexual interactions with a person under the age of sixteen.

Sexual Assault 2nd is either a class B or C felony. It is not a capital crime but still very serious.


I don’t know what the law is in the UK, but the actions in “Stray Cat Blues” by the Rolling Stones (the linked version is not the Stones) would constitute Sexual Assault 2nd in Connecticut. The Rolling Stones are clearly too old for the female character in the song, or really anyone else.

Despite the traditional notion of statutory rape being between an older male and a younger female, the law is no longer gender specific. Women can and have been charged with committing this offense.

Unlike the Rolling Stones, Winger does not have to worry about breaking the law. At least not in this state. Still, a musical act touring the country should be cognizant of all the necessary laws.

Contemplative impermissible sex is a longstanding trope in pop music. Just listen to “Touchin’ me, touchin’ you” Neil Diamond.

Neil Diamond was wise to wait.

Keep it legal, my friends.